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United States v. Cobb

United States District Court, D. Nevada

September 9, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
GLEN COBB, et al., Defendants.

ORDER DENYING MOTION FOR TRANSCRIPTION OF GRAND JURY MINUTES (Docket No. 101)

NANCY J. KOPPE, Magistrate Judge.

Pending before the Court is the motion for transcription of grand jury minutes filed by Defendants Glen Cobb, Charles Cobb, Anna Cobb and Monica Namnard. Docket No. 101. The Court has considered Defendants' motion, the United States' response and Defendants' reply. Docket Nos. 101, 109, 114. For the reasons discussed below, the Court hereby DENIES Defendants' motion.

On August 15, 2014, Defendants filed their motion for transcription of grand jury minutes. Docket No. 101. Defendants ask the Court to order the United States to immediately produce transcripts of all grand jury proceedings. Id., at 2.[1] Defendants claim that the United States may have engaged in outrageous government conduct in its presentation to the grand jury, and that Defendants need all transcripts of the grand jury proceedings in the instant case in order to make a determination as to whether and, if so, to what extent the United States engaged in such outrageous conduct. Id., at 2-3. Alternatively, Defendants ask the Court to order that the transcribed minutes and proceedings before the grand jury be made available at the time of trial so that the Court "may determine Defendants' right of inspection and use pursuant to 18 U.S.C. [§] 3500(e)(3)." Id., at 3.[2] Finally, Defendants request the production of all grand jury transcripts of all witness who will testify at trial, and request this production prior to trial. Id. [3]

In response, the United States submits that Defendants' allegation of potential outrageous government conduct relates only to the forfeiture allegation, and not to the substantive charges of the indictment, and that Defendants have not presented authority in support of their position. Docket No. 109, at 3. The United States further contends that an alleged instance of grand jury misconduct only constitutes the particularized need required by the caselaw if the claimed misconduct would compel the "drastic and disfavored" remedy of dismissal of the indictment. Id. (internal citations omitted). The United States submits that Defendants' contention that the United States had agreed that the full amount of the funds were not the proceeds of illegal activity (Docket No. 101, at 2) belies the facts, as the United States filed a sealed notice in a related civil matter on June 23, 2014, "repudiating any such position and explaining that the government viewed the funds in question as illegal proceeds." Docket No. 109, at 3; Docket No. 110. Finally, the United States agrees that grand jury transcripts constitute Jencks Act material, but that the Jencks Act only applies if the witness or witnesses who testified in the grand jury testify at trial. Docket No. 109, at 4. The United States represents that it does not anticipate that any grand jury witnesses will testify at trial and, therefore, it does not intend to produce grand jury transcripts to Defendants. Id. If the United States later determines that a grand jury witness will testify at trial, it submits that it will produce the transcript "consistent with the Jencks Act, applicable case law, and the government's disclosure statement."[4] Id.

In reply, Defendants submit that the United States responded solely to their Jencks Act argument and represents that none of the grand jury witnesses will testify at trial. Docket No. 114, at 2.[5] Defendants rebut the United States' contention that they cited no authority in support of their requests for grand jury transcripts, claiming that they requested them pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).[6] Defendants contend that the grand jury testimony may include impeachment issues for the witnesses who testify at trial, whether or not the grand jury witnesses are called to testify. Docket No.114, at 2. Defendants contend that the United States has failed to produce copies of eight separate items, and that Defendants are thus still unable to obtain exculpatory information from these items. Id. [7] Finally, Defendants do not contest that the issue they raise deals with the forfeiture allegation. Rather, they now submit that the Court should order production of the grand jury transcripts because "the forfeiture allegation was obtained... after a judicial finding in a parallel civil proceeding calling into question the probable cause to raid this entire trust." Id., at 3. Defendants reiterate that the grand jury transcripts "may" indicate the United States engaged in conduct warranting dismissal of the indictment in this case. Id.

DISCUSSION

The general rule of secrecy of grand jury proceedings is essential to the purpose of the grand jury process. United States v. Proctor and Gamble Co., 356 U.S. 677, 681 (1958). The exceptions to the general rule are few, as evidenced by Fed.R.Crim.P 6(e)(3). Under Rule 6(e)(3)(E), "[t]he court may authorize disclosure... of a grand jury matter... at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed.R.Crim.P. 6(e)(3)(E)(ii). The party seeking the disclosure must show a particularized and compelling need for the disclosure that outweighs the policy of grand jury secrecy. In re Grand Jury Investigation, 642 F.2d 1184, 1191 (9th Cir. 1981); see also Dennis v. United States, 384 U.S. 855, 870 (1996). Unsubstantiated speculative assertions of improprieties do not supply the particular need required to outweigh the policy of grand jury secrecy. See, e.g., United States v. Ferreboeuf, 632 F.2d 832, 835 (9th Cir. 1980) (citations omitted).

Defendants have not shown a particularized and compelling need for disclosure that would outweigh the general policy of grand jury secrecy. The only ground asserted by Defendants in their motion itself is their contention that the United States conceded on two occasions that it overseized funds from one of Defendants' trust accounts, and that the United States then represented to the grand jury that all of the funds in the account were illegal proceeds. Docket No. 101, at 2. Defendants' contention, however, does not comport with the actual evidence in this case; specifically, the United States' June 23, 2014, notice to the Court in a related matter that states that the United States made a determination, after a hearing before the Court in May but prior to presenting the case for indictment, that all of the funds in that particular account constituted illegal proceeds. See Docket No. 110.[8] In reply, Defendants acknowledge the notice filed by the United States in the related civil matter. They state that a judicial finding in that matter "called into question" the probable cause for the seizure warrant for this one account, but fail to cite to or provide any opinion that does so. Id., at 3. Further, Defendants' argument that the transcripts "may" indicate the United States engage in outrageous conduct warranting dismissal of the indictment is a speculative statement that fails to provide any sort of particularized showing as required. See Ferreboeuf, 632 at 835.

As to Defendants' request for alternative relief, the Jencks Act has not yet been implicated, as no witness has yet testified at trial. See 18 U.S.C. § 3500. Therefore, Defendants' request for inspection by the Court is not ripe.[9] Further, the United States has submitted that no witnesses who testified in the grand jury will testify at trial. Docket No. 109, at 4. Therefore, Defendants' request for grand jury transcripts of witnesses is not ripe.[10]

Accordingly, based on the foregoing and good cause appearing therefore,

IT IS HEREBY ORDERED that Defendants' motion for transcription of grand jury minutes, Docket No. 101, is DENIED.


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